Ancient Tales of a Kingdom not Unlike One You Know

Opinion

15 months after the elections and 12 after the swearing-in of the new administration, more than enough time has passed for everyone to move on from campaign rhetoric and be more forward looking. It doesn’t seem likely to happen anytime soon, though, as many on either side of the fence still seem somewhat upset, for various reasons. However, both sides are more alike than each would like to admit and have been going through the same emotional/grief cycle. How, you ask, given that one side’s candidate won and the other lost? I’ll try to explain it.

Denial

For the Jonathanians, there was a lot of hope in the power of his incumbency and while they did expect the elections to be close, they did not anticipate his loss at the polls. They tried to point out voting irregularities like extensive underage voting in some parts of the country and a blanket failure of card readers. But it was not to be. Jonathan had lost.

The Buharists on the other hand, could not believe that the candidate they had sold with so much gusto was not similarly embraced by the entire country. Newspapers, in succession, both local and foreign, pointed out that he was probably as problematic a candidate as Jonathan, with his own Achilles Heel. However, they sold the candidate they imagined and hoped Buhari would be. President Buhari went on to win the election, but only by 51% of the vote to Jonathan’s 46%.

Anger

The Jonathanians were aggrieved at their principal’s loss and nothing is more symbolic of that anger than former Minister Orubebe’s sit-in “We will not take it” protest while the results were being announced.

Meanwhile, between the elections and the President’s assumption of office, information began to filter through about the wanton excesses that had occurred in President Jonathan’s government and how some officials were keen to make restitution before the axe of Buhari was imbued with the power of office and came swinging down with a vengeance. The Buharists were angry that so many were willing to consider Jonathan for re-election, and that alleged looters thought they could plea-deal their way out of consequences for their actions.

Bargaining

Then came all the what-ifs and if-onlys. If only Jonathan had focused on the Niger Delta and on Power. If only he’d shown a steelier spine and not been such a Johnny-come-lately, allowing everyone and everything to sway him. And if only Buhari was a bit more communicative and empathetic and did not do things that lent credence to the pre-election suspicions of the Jonathanians. What if he’d actually hit the ground running and appointed a cabinet earlier? And if only when he spoke he didn’t actually say some of the things that he was being reported to have said.

Depression

This is the current stage in the cycle. Both camps are losing wind and are defending their principals with a little less enthusiasm now. The profligacy of the Jonathan administration has led to the alleged uncovering of swathes of cash buried away in septic tanks and false walls in people’s homes; revelations, almost new every morning, about the EFCC’s noose tightening around some former official or the other’s neck. President Buhari has also not shown too much dexterity outside the sphere of chasing down loot, with the economy reeling from his tentativeness in addressing its issues. More than a few of his supporters, even the most ardent ones have stopped just short of renouncing their followership.

Acceptance

This is where we urgently need everyone to get to, especially the President’s cabinet. Looking back so frequently and pointing accusatory fingers only opens the door for them to be measured against the same yardsticks, as they are all coming to find. The supporters also need to fully accept the flaws of their respective principals with equanimity. Both have huge chinks in their armour and anyone who sticks their neck too far out in their defence will probably end up with a lot of egg on their face. We need to accept that GEJ wasn’t all bad and Buhari isn’t all good. We need to also accept that our fate, at least for the immediate future, lies in Buhari’s hands & his failure has grave implications for all of us.

Hopefully, acceptance will mean that as supporters we can put away triumphalism, snark and I-told-you-so; and that the current administration is looking firmly forward. Let’s move on.

NB.

What about supporters of Kowa Party (and other “mushroom parties”) and those who remained on the fence in undeclared fealty?

It’s been an eventful couple of weeks for the entertainment industry here in Lagos, on the legal side of things. Injunctions were sought (and allegedly flouted), some arrests were made (a label was following the money) and some deals were re-done. Some thoughts on the goings-on and more –

It’s a business, not a charity

One of the viewpoints to first make the rounds on social media was that labels ‘in the abroad’ aren’t as hardnosed as Nigerian ones. They, allegedly, invest millions in the artist and if the artist doesn’t make it, everyone just parts ways.

It’s a slightly outside way of looking at things. Yes, it’s a risk the labels are taking and if they’re not happy at the end of your contract, everyone parts ways happily (see, for example Skales and his former label, EME). However, no “abroadian” artist is going to simply up and try to jump ship. You either run out your contract, try to get the label to release you, or ask the court to tear the contract up. It’s a very naïve or poorly advised artist that declares a unilateral end to a contract that hasn’t yet expired.

Contracts are almost unbreakable. But bring the tear of a dragon & a unicorn’s horn & we’ll see…

Contracts are the lifeblood of commerce. If people were able to make commitments to others and fail to honour them without any consequences, business/trade would be in tatters. For this reason, all over the [free] world, Courts are very reluctant to end or amend contracts that have been freely entered into.

However, courts have in the past released musicians from their labels, where they were convinced that the recording contract, or the circumstances of the relationship between the parties, prevented the musician from making a living (restraint of trade). Typically, this is where the label has refused to honour music release/publication commitments or has made the terms for doing so too tasking for the artist. Courts might also be minded to declare a contract invalid if the artist can show undue influence on the part of the label. So, basically, if you can show that you were strong-armed into signing onto the label, or that the label is making it virtually impossible for you to earn any income, you might want to talk to a lawyer about securing your release. Lawsuits can be expensive though, especially for an artist alleging that the label is closing off his/her income…

Those Unbelievable Clauses? It’s the economics, St#$@*!

Following the ‘arrest’ and questioning of one artist and his manager, snippets of the artist’s recording contract were released and many commentators were shocked at the terms. The most fantastic of the terms appeared to be the £10m release/buy-out clause (riddle: when is a label like a Premier League club?) and the assignment to the label of the artist’s copyright in compositions that existed prior to his joining the label.

The immediate assumption was that the artist signed the contract without seeking legal advice or, in the alternative, that he had a bad lawyer. It’s an assumption that misunderstands the dynamics of the Nigerian music industry, as the thinking behind it is that an artist can get a label to significantly change the terms of its contract.

There are indeed a few artists that can get their requests for changes agreed to, but most are either label owners or execs themselves. For artists on the up and come, there is very little leverage that can be applied on the label, so it’s usually a take-it-or-leave-it situation. The artist in question here had just been released by his former label, where he’d only been moderately successful and had this new label promising him a signature bonus, a brand new SUV and a flat in Lekki. How many artists in that situation would listen to the lawyer’s advice not to sign?

I’m speaking from personal experience, having advised an artist on a nearly identical contract (whose template is it, anyway?) sans SUV and flat. The label lawyer rejected virtually all the changes requested, so the artist was advised not to sign. Artist signed anyway.

Where’s the money, anyway?

Ask the average Nigerian artist where they expect their money to come from and you’re likely to hear live performances and product endorsements. Maybe caller ringback tunes as well. Virtually no one is interested in record sales. This Nigerian model is predicated on music being given away for free in the expectation that fame (and then the live performances and endorsements) will follow. This model probably only works for the Top 20-30 artists in my estimation and I don’t believe it to be sustainable. In addition, on CRBTs side, the average artist will get only 6-12% of the gross revenue, depending on the network (those that pay, that is; some are notorious for not paying).

Globally though, the highest growth area for music revenue is music streaming, with the IFPI 2016 Global Music Report showing that streaming revenues increased globally by 42.5% on 2015’s numbers. Digital sales on the whole have overtaken physical, the figures now standing at 45% and 39%, respectively.

Streaming accounts for nearly half of the global industry’s digital revenues. I might have a slight occupational bias here, but artists as a whole stand to make a lot more if they began to take digital REVENUES (not merely distribution) seriously.

Which brings us to COSON…

COSON continues to do a great job of informing the public in the various rights that music users should respect. They have also done well, as the sole collecting society authorised by the Nigerian Copyright Commission, in collecting license payments from broadcasters and public venues where music is played and enjoyed (hotels, bars, restaurants, etc.). However, this is performance rights revenue, which globally accounts for only 14% of the pie. If the aim, as the representatives of COSON frequently say, is to ensure that producers, session musicians, songwriters, etc. also get a slice, there’s the question to be asked whether or not it’s helpful to join the industry in ignoring sales. A few producers have been in the news recently, accusing artists of not having paid for the work – they have no share in the revenue from the artist’s live performances, so what’s the remedy? There’s also the issue of sampling and covering – ordinarily, there should be a minimum statutory fraction of the sales revenue (from the song doing the sampling or covering) that goes to the original composer. In a jurisdiction where sales aren’t paid attention to, and no statutory rates apply, how do the original rightsholders get compensated?

I am aware, I should say, that COSON has a digital licensing framework in the works, and I look forward to its publication in the near future.

“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

“Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) for the purpose of preventing the disclosure, of information received in confidence; maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematographic films; …”

This is the summary of the provisions of the Nigerian constitution on the right to freedom of expression. The section has become relevant in the light of a draft bill being circulated, seeking to establish a Motion Picture Council of Nigeria (MOPICON). The name seems innocuous enough, but when a look is taken at what the Bill seeks to empower Mopicon to do (see the MOPICON Draft Billor read a review of the Bill here), then it is time to be a little concerned.

As is typical with most Bills in our country, there is no White Paper – no summary of the challenges or mischief facing the motion picture industry. There have been a couple of interventions as to why the Council is needed (see here and here), but these only appear to vaguely refer to the “challenges” facing the industry and the fact that some guilds gained traction and others didn’t. At a first glance therefore, it may be that the production of the Bill was driven by a need for validation in a certain faction of the industry old-timers. A review of the law itself doesn’t help either in identifying what mischief the law seeks to cure, or the problems it is trying to address.

The Bill seeks to establish the Council for the purpose of charging it with duties that include, amongst others:

“(a) determining who are Motion Picture Practitioners;

(b) determining what standards of knowledge and skills are to be attained by persons seeking to become registered Motion Picture Practitioners and reviewing those standards from time to time;

(e) regulating and controlling professional practice in the motion picture industry…”

It may perhaps then be that the industry has been contending with fake practitioners, lacking in knowledge and skills and functioning without professional regulation and control. These charlatans were probably duping unsuspecting members of the public into hiring them and causing the economy to lose billions of dollars monthly. Who knows?

The Bill proceeds to segment the industry into Guilds and Associations. Writers, directors, actors, cinematographers, editors, creative designers and sound and lighting technicians will each have their own guild, while distributors/marketers and producers will belong to associations. Each of these guilds must seek accreditation from the Council.

The drafters of the Bill appear to have some doubt over which ministry is supposed to supervise the Council. This is very likely to be connected to the dispute between the Ministry of Information and the Ministry of Communication which arises from time to time, over issues where their jurisdictions ostensibly overlap. As such, the Bill frequently refers to a “Minister in charge of motion picture”.

The Bill then creates tiers of membership with the Council – associate members, full members and fellow members. Associate members need to be enrolled in training programmes (of not less than 3 years) with full members who have at least 10 years of experience, and who are recognised and accredited by the Council. Full members need to undergo at least a year’s professional training as approved by the Council, or have acquired “skill and expertise in Motion Picture Practice for a period not less than 3 years.” Fellows get so appointed by the “Privileges and Ethics Committee” of the Council subject to the criteria that said committee will lay out. However, a minimum consideration appears to be that the candidate for fellowship must show that “in the fifteen year immediately preceding the date of his/her consideration, [he/she] has been in continuous active practice as a motion picture practitioner.” What is active continuous practice? If I go away for research/participant observation for my next project for, say, 18 months, have I broken my period of continuous active practice?

The Bill says you can’t be a member unless you’re 18 years old, so it’s unclear what this portends for child actors (or other teenage apprentices), given the sanctions for being involved in motion picture practice, which we shall get to in a minute. Foreign actors/practitioners too are excluded unless their home country has a reciprocal arrangement recognising and permitting Nigerian actors/practitioners.

The Bill then gets even more interesting.

You’re not entitled to practice as a motion picture practitioner unless you’re a member of a recognised Guild or Association. You’re not allowed to stay in your lane, never mind that the constitution grants you the freedom to belong to or leave associations.

It goes further to say that you cannot take anyone to court to recover your fees unless you’re either a member or a fellow of the Council, in respect of any work you’ve done as a motion picture practitioner. This means that if you take your debtor to court, it will be a defence for him to say you’re not entitled to the fee since you’re not a member or fellow of the Council.

Additionally, if you’re not registered as a member with the Council, you are prohibited from producing or making projects for either the Cinema or Home Video Market.

Breaching any of these provisions could make you liable to a fine of N100,000 or to imprisonment for a term of 2 years.

Also interesting is that MOPICON will furnish the Nigerian Film and Video Censors Board with the list of practitioners to be licensed under the NFVCB Act.

Oh, and if criminal proceedings are brought against you under this law, as they pertain to acts that are offences if done by unregistered persons, the law says there is a presumption that you are unregistered unless you can show otherwise. Changing burden of proof in criminal proceedings. Interesting.

What does the MOPICON Bill really set out to achieve? I see nothing more than the establishment of an oligarchy within an industry that has thrived in spite of the government’s oil-centred tunnel-vision. A select group of people (most likely the promoters and their affiliates will determine who is a member of the industry and who isn’t, who can be a “motion picture industry practitioner” and who can’t. The question is, why?

Is the industry suffering due to a lack of accreditation of individuals and guild membership? That’s not the impression I get. Rather, because the industry has operated under free market principles so far, those who have distinguished themselves are establishing reputations, are able to attract the funding required to execute bigger projects. Certain producers, directors and editors are beginning to be known as the go-to guys because their quality is speaking.

MOPICON will effectively become a licensing authority for the creative industry. License to be an actor, license to be a script-writer, license to direct how scripts are interpreted onto film, license to hold a boom mic and work the sounds and lighting, license to collect one’s fees for one’s work. To me, this is absurd and the omnibus, ubiquitous Nigerianism of wanting to “sanitise” the industry cannot hold. In more developed “motion picture industry” jurisdictions, there is no such regulation. There are censors, as there are in Nigeria, but these operate to classify movies as appropriate or otherwise for different audiences. Some might point to bodies like the Screen Actors Guild but those guys (and a few contemporaries) started out as trade unions to negotiate fairer working conditions for actors. They were not and are not a professional licensing authority. Like these “saner climes”, we also have regulations from the Film and Video Censors Board, as well as a Broadcasting Code from the Nigerian Broadcasting Commission. What tangible benefit is MOPICON going to add?

Creativity should not be subject to a license from anyone. Imagine if we couldn’t write novels or blog, stage plays, paint pictures, make music, make sculptures, take pictures unless a small group of tsars said it was okay. This is exactly the same thing. Creative people are judged by how much the public enjoys or rates their work. Quality will shine and be rewarded in due course. The same is true of the converse. I personally hope the MOPICON Bill doesn’t pass.

A quick search through the constitution, or even a detailed one, will show you that the word “oversight” does not occur even once. What then is this concept of legislative oversight and how wide is the power, if it indeed exists?

A key tenet of democracies is the principle of the separation of powers. The powers, broadly, are executive powers, judicial powers and legislative powers. In the golden age of philosophy, it was the consensus that vesting all powers in one person or one organ would lead to anarchy and abuse, and that it was best to separate them so that they would each be a check on each other. This is the root of the well-worn phrase in Nigerian politics, “checks and balances”.

The powers of the legislature to check and balance the executive arm and its organs are in sections 88 and 89 of the constitution.

Section 88 says each House of the National assembly has the power to investigate (a) any matter in respect of which it has the power to make laws; and (b) the conduct of any parastatal or official responsible for administering any Act of the National Assembly or in charge of disbursing funds. The section then says that this power to investigate is only exercisable for the purpose of enabling it (i.e. the Senate or the Reps) to (a) make laws on any matter within its legislative competence and correct defects in existing laws; and (b) expose corruption, inefficiency or wastein the execution or administration of laws.

Section 89 says, as it relates to their power to investigate, they also have the power to procure evidence, require the evidence to be given on oath, summon anyone to give evidence or produce documents, and issue a warrant to compel the attendance of any such witness.

This is the entirety of the so-called oversight power. The power to investigate and the power to call for evidence and witnesses. Investigations are for the purpose of exposing waste and corruption, or for directions on amending existing laws.

The closest that the Senate has to a judicial power is the power to issue a warrant or summons to compel the attendance of a person who was previously invited but failed to turn up.

As such, every time that the Senate has “ordered” a reversal of a tariff hike, purported to revoke a contract in which the Federal Government is a party or reversed a new process (e.g. driver licensing), effectively issuing an injunction, it has acted in excess of the powers that the constitution grants it.

Disclaimer: The views expressed in this piece are totally personal to me, in my personal capacity as someone who has had a keen professional interest in the development of the copyright administration system in Nigeria for over 10 years.

The Copyright Society of Nigeria (COSON) just concluded the hosting of a summit on digital music distribution, licensing and consumption. The 2-day event was tagged “The Nigerian Digital Music Summit” and its theme was “Establishing the Basic Rules of Engagement in the Digital Environment”. It was attended by industry practitioners, lawyers and also had resource people from countries with more mature copyright systems, such as Norway, Finland and South Africa. At the end of the summit, a communiqué was published, outlining the various things the community wanted to see in place.

Moving quickly to the substance of the proceedings, the gathering very quickly turned on the telcos, accusing them of benefitting unfairly from the music they exploited, mostly via Caller Ring Back Tones (CRBTs – the songs you hear playing when you give someone a call). And it was understandable. For an industry that has risen from piracy-ridden ashes to becoming arguably the leading hub in Africa and a major contributor to GDP post-rebasing, CRBTs were the content producer’s goldmine for sometime. Network saturation, in terms of subscribers and availability of CRBTs now means there are lots more mouths contending for the same pot of beans and individual revenues are declining somewhat.

In the middle of all this however, is the [unsavoury] fact that the telcos retain anywhere between 60 and 80% of the income generated from CRBTs. The remaining 20-40% is then shared between the Value Added Service (“VAS”) Company and the artist/or record label, with of course an even smaller share for the artist if they are signed to a label. With the bulk of their earnings coming from either corporate endorsements (but we can’t all be Don Jazzy, Phyno, Wizkid or Olamide) and CRBTs, the industry is probably justified to demand a larger cut.

Tellingly, however, very little attention was paid to streaming in spite of the efforts of CAPASSO CEO, Nothando Migogo, to stress that the time to focus on it was now i.e. before bandwidth and data costs stop being issues.

The industry should be worried about streaming because each of the four telcos in Nigeria now operates a music streaming service – MTN Music+, Airtel Wynk, Etisalat Cloud9 and Globacom’s Music App. If these telcos have held on to the lion share of the revenue with CRBTs, what’s going to happen with streaming revenue from their services? For other music streaming services, the most efficient way to take payments from subscribers and purchasers is via their airtime. However, when the telcos convert airtime to cash to pay for a transaction, they typically retain about 70% of it, leaving only 30% to be shared between the stand-alone streaming service and the artist/label. Perhaps the even more pressing issue is that the aim of the telcos in starting these services, in my opinion, is to sell data, as voice revenues have peaked globally – data is the new frontier. It’s the same reason some of them are getting into video on demand, etc. In other words, data sales are the real target, the real pot of gold at the end of the rainbow for the telcos, and these guys don’t share data revenue (larger than music download or streaming subscription revenue) with anyone.

BUT EVERYONE LOVES THE FREE DOWNLOAD SITES

Perhaps it’s even more striking that an industry that wants to earn serious digital revenues made no reference to the industry practices that cannibalise the larger portion of digital earnings, particularly the way nearly everyone offers vast amounts of music for free downloads. What will the incentive be for consumers to buy albums when 70% has previously been released for free. If one also considers the fact that the industry is globally now more singles-driven than albums (iTunes killed the album), this is effectively a limiter on potential earnings, if all singles are given away. The CRBT gravy-train won’t last forever and it isn’t even really working for those who need it to, who have neither the eye-watering performance fees or the juicy telco endorsement deals. Will those ones dare cross the picket line against their benefactors?

ENTERTAINMENT DEVICE LEVY?

Another interesting issue that came up was the Private Copy Levy. This is basically a surcharge on all mobile phones, tablets, PCs, storage devices, etc. to compensate musicians for the revenues they lose when we email or Bluetooth music to each other. I would be very interested to see how our analogue National Assembly would treat this sort of legislation.

F.U.B.U.

Perhaps a final impression is on a comment made by the panellist on the need to develop homegrown solutions to our problems. Yes, benchmarks can be drawn against global best practice, but ultimately the mature systems matured because they developed relatively organically and catered to the needs of their locale, not necessarily pidgeon-holing themselves into systems others had developed. I think it’s important to take local peculiarities into account, to get the system that works best for us.

All said, COSON is doing very important work and deserves commendation for how far its come in the past few years. As long as it becomes clearer how it distributes revenues it collects, and as it increasingly delivers value to the industry, the benefits to will be immense.

I was asked to do this piece as part of a series for TheScoopNG.com. The piece was first published on their website, here.

I did not support General Buhari’s candidacy for the 2015 elections and I am therefore wary of adding my voice to the growing list of people setting an agenda for him. However, as someone recently pointed out, he’s going to have a difficult enough time merely living up to his campaign promises without the input of this new self-appointed council of state, so I suppose this piece cannot do too much [further] harm.

The original topic I was asked to discuss was the Judiciary’s expectations of the incoming president. As I am not a judge however, I asked for latitude to discuss what I think will be the expectations of the legal profession as a whole.

Judicial Reform

There is no better person in the world to be Vice President, when it comes to the issue of judicial reforms, than Professor Yemi Osinbajo. He is the reason why the Nigerian Law School had to develop additional course material on civil procedure. During his time as Attorney-General of Lagos State, he oversaw the introduction of revised rules of court that sought to make the process of litigation a much smoother and more efficient affair. Many states have since amended their rules of civil procedure to conform more to those in Lagos State.

Unfortunately, however, even though Lagos continues to lead the country in judicial process innovation, trial times still average 2-4 years for hearing relatively uncomplicated matters. Many people do not mind being taken to court because they know immediately that the pressure to take remedial/corrective action has been lifted for a while. Many people, on the other hand, also resort to self-help because they do not have the luxury of 2 years to waste on a decision which they can’t even reasonably predict. I have previously discussed judicial reform here.

Of course, this is a matter on the Concurrent Legislative List, meaning that the Federal Government cannot dictate how States run state courts. However, the Buhari-Osinbajo regime would do well to pioneer the reform process at the Federal Courts. If they are successful, it is only a matte of time before the states follow suit. Faith must be restored in the judiciary as the last hope of the common man. There should be relative predictability of durations and outcomes. The judiciary staff, especially the support staff should become more professional and less demanding of “facilitation” to give dates or progress files.

Regulatory Certainty/Stability

This is probably the great desire of my constituency of commercial law advisers and practitioners. As it stands today, you would be hard-pressed to find legal advice with absolute certainty on all applicable taxes applicable to a business. Most advisors will only give an approximation because we have 3 tiers of tax, which get murkier as you descend down the federal ladder. Some of the taxes overlap and although successive governments have promised to address the matter, very little progress (some would even say effort) has been made.

If you add into the mix the growing number of chartered professional institutes and professional regulatory bodies all jostling for relevance and adding further barriers and hurdles to the business process, the picture becomes even cloudier.

Uncertainty is a disincentive to business and investment. It hinders proper planning and leaves avenues for businesses to be exploited by unscrupulous government officials. Of all the talk and bandying about about of the much clichéd “creating an enabling environment” for businesses, putting entrepreneurs in the position to resist the imposition of random and stealth levies ranks nearly as high, in my estimation, as ensuring stable electricity. Let everyone know what their obligation to society is and be free thereafter to pursue their interests.

There is also the uncertainty that comes about in legislating via directives. Heads of government agencies, very many times on whims, change policy or business requirements with a mere letter or an interview in the newspapers. Thankfully, a few directives have successfully been challenged (eg FRSC directive on new license plates) but a system where wide-reaching policy shifts or legal requirements don’t go through the rigorous process of law-making or being issued as gazetted regulations must be discouraged.

Rule of Law

This should not be too hard for the ex-General as his greatest asset is his reputation for abhorring corruption and corrupt practices. I would approach upholding the rule of law from 2 sides. The first, more obvious side, is that which compels government and its agencies to respect the law and be subject to due process at all times. The less popular, and less expounded side, is that which insists that there must be consequences for wrongdoing, no matter how highly placed the wrongdoer is.

Conversely, agents of government must also act within the limits of their powers. Wearing a uniform and brandishing a firearm should not become a license for trampling on the rights of citizens. Policemen should no longer be available as intimidators-for-hire to settle civil disputes (which, when you think about it, would no longer be necessary if the courts granted timely/speedy justice).

This point also extends to our orientation as a people. While it would be totally unacceptable for the country to go back to the floggings of when the General was last at the helm of affairs, we do need to be “whipped” into shape. The “Do You Know Who I Am” syndrome had to die an urgent death. People must learn to wait their turn, be orderly and show consideration for the next person. So whether it’s in the conduct of one’s business or simply driving from Point A to B, upholding the rule of law on the part of both the government and the citizenry, means everyone understands the legal and social consequences of all their actions.

The public office side probably should be higher on the priority list, however. And if they can reform the judiciary and speed up the dispensation of justice, it should no longer take 2-3 years to determine if a public official pilfered or not. There should also be no interference from the Federal Government with the various law enforcement agencies, as long as those ones also act in good faith within the scope of their enabling laws. They should be free to investigate and prosecute without let or hindrance.

To conclude, there are probably a few more areas that the profession would like to see the impact of the incoming government. However, it is my belief that achieving even one of these items would be transformational for the entire country. Achieving all three would be nothing short of earth shattering. If the government can ensure that the system works more efficiently, is fairer to those on the lower rungs of the societal ladder, and metes out commensurate punishments for crimes (no more N300,000 fines for N50bn thefts), then I am quite confident that the government will earn a veritable commendation from the legal profession.

The recent ex parte injunction against Multichoice (owners of the DSTV brand and service) is an interesting one. While litigation is not my forte, I think the issue at this stage is one of basic procedure but, of course, I welcome any corrections from my more experienced colleagues.

To put the lawsuit in context, Multichoice, a cable TV broadcaster, has been sued in a class action for increasing its subscription fees in Nigeria. The plaintiffs commenced their action by filing an ex parte motion asking the court to order Multichoice to keep its fees at the pre-hike levels, pending the determination of the lawsuit. An ex parte application/motion is one made to the court by a party in the absence of the party against whom it is sought to be enforced.

Personally, I was surprised to hear that the ex parte motion was granted and here’s why. The relevant rule of court procedure says as follows –

“A motion ex parte shall be supported by affidavit which shall, in addition to the requirements of rule 3 of this Order, state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving.” (Emphasis supplied.)

The default position of the law is that the party you’re seeking an order against should be given notice of the motion, as well as the opportunity to present arguments against your motion at the time you’re moving it. However, the law recognises that in some instances, irreparable damage may be done if the normal process is followed and therefore provides for the ex parte process, in what should really be emergency situations e.g. a house may be demolished, or a life is in danger of being lost, or the asset in dispute (a vessel, machinery, etc) may be moved out of the court’s jurisdiction. To my mind, really serious stuff.

Now, while the party against whom an ex parte order has been granted can apply to the court within 7 days to amend or cancel the order, it would be interesting to know the circumstances cited by the Plaintiffs to justify an emergency freeze on the DSTV subscription rates. The company is a private company, delivering a luxury, non-essential service, with different product offerings to cater to different budgets, and customers have the ultimate option of not renewing their subscriptions to prevent the “irreparable damage” to their wallets and bank accounts. There are also alternative services available, ranging from free-to-air terrestrial channels to web-based providers and other cable services as well. It simply seems a very un-urgent matter to me.

I look forward to the final outcome of the suit and ultimately to a time when a Competition/Anti-Trust Commission is established to look into allegations of monopolistic practices and abuses broadly.

First of all, however, let’s get some ad hominems out of the way. I am male, the gender more likely to be accused of committing rape. I am the first of four sons and I grew up with no sisters. So perhaps my position will be perceived as biased. However, I am also married (to a woman – one must clarify these days) and we have 3 daughters, for whose future I am always terribly concerned. So, maybe a little reverse ad hominem there too. In other words, I think my opinion will be balanced. At least a little.

My interest in this matter is mostly an academic one – a logical and jursiprudential look, as far as is possible in a non-academic piece such as this, at the events that led up to the conviction of Ched Evans. The facts of the case (here’s the link again) are that Evans and a “mate” of his had sexual intercourse with a very drunk girl, who claims she woke up the next morning hungover, without any memory of what had transpired the previous night. She’d arrived at the hotel where the incident took place in the company of Evans’s friend (McDonald) who, as we say in Lagos, “controlled his guy”. Evans arrived to meet the accuser “enthusiastically engaging in consensual sex” with McDonald and claims she asked him to perform oral sex on her. After that, he proceeded to have penetrative intercourse with her. Long story short, after she woke up the next day she reported to the police and both men were charged. When she was examined and samples taken from her body, there was only evidence of intercourse; no bruises or injuries indicative of violence.

The thrust of the prosecution’s case was that the accuser was too drunk to have given her consent and therefore could not have given it. In a very technical (and almost convoluted) explanation, her memory loss was discounted, both at the trial and at the application for leave to appeal the judgement. Discounting her memory loss is significant for me because, what if she did consent but had forgotten? Rather, according to the judge when sentencing Evans, “…. [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that.” I shall return to this shortly.

The jury, based on evidence of the accuser’s state as gathered from CCTV and witness testimony, acquitted McDonald but convicted Evans. I find this a little curious. If she was too drunk to have consented, as was the prosecution’s case, did going to the hotel with Evans indicate subliminal consent or did she somehow get drunker just before Evans came along? Note that (1) there was no evidence that she ingested more alcohol at the hotel; and (2) when she was tested at the police station, the following morning, there was no trace of alcohol left in her blood. On what basis did the jury deem that she consented to the sexual activity with McDonald but not to the one with Evans?

Then we return to the judge’s summation of the law, that the complainant was in no position to form a capacity to consent. Now, the thinking here is obviously to prevent vulnerable people from being taken advantage of; so that, for instance, men would not get away with intentionally intoxicating targets and putting them in that state of inebriation or incoherence to have their evil way with them. Fair enough. But it does not seem to me that the facts of this case fall under such precautionary jurisprudence. The implications for this on drunken, spontaneous (AND, hopefully, VERY SAFE) trysts, aside, it seems that what is being implied is that it is illegal to have coitus with a partner who is not in a position to communicate a withdrawal of consent.

I put the emphasis on withdrawal because, as these things go, except the sexual act is a transactional one lubricated by financial oils, consent is very rarely ever positively/verbally sought or communicated. Yes, sometimes, the guy asks if he can kiss the lady (I’ve been informed that this is not the preference of most ladies), but many other times, the man generally swoops in tentatively and sees consent or refusal in the lady’s response to his gesture.

Same for more advanced physical contact. You try first base, then second, then third, then go for the home run. It is extremely rare that consent is positively or categorically sought at each of these metaphorical stations. What usually happens is, when it seems like things are moving onward from any base, the uncomfortable lady communicates hesitation (during which moment, many a-weak man will say and promise anything to progress) or an outright NO, at which point, all well-mannered men retreat, albeit regretfully and konjilically. This is why I struggle a little with the reasoning behind “not in a position to form consent” in this case.

This piece does not seek to detract from the seriousness of non-consensual sexual activity. The only reason I’m even able to debate the case is because the crime alleged was not of the stalking or violent variety. I’m also not holding brief for Mr. Evans, and only the three people in the room know what actually occurred. Well, two, if one remembers that the third person had no recollection.

However, if she was so drunk that sex with Evans could not be deemed consensual, how is it that she was deemed sober enough to have consented to sex with McDonald? She was sober enough to agree to go to the hotel with a total stranger but too drunk to have consented to sex with a third party, even though the evidence of the 2 men involved as to what transpired in the room was not contradicted?

Rape is absolutely and completely deplorable and I understand that being a footballer is not a human right, but the facts here do not support Evans being treated like depraved, deviant sexual predator. This is as borderline as they come.

Furthermore, as this Slate piece (long read) suggests, while every accuser deserves to and should have her case investigated thoroughly, the fact of the accusation alone should not lead to a presumption of guilt and the unfair treatment of the accused.

UPDATE: On the 21st of April 2016, Ched Evans had his conviction quashed by the Court of Appeal and a retrial was ordered.

FURTHER UPDATE: On the 17th of October 2016, Ched Evans was found not guilty after the retrial.

In the left column of the table below are the original lyrics to Do They Know It’s Christmas, a song to raise money for a charitable cause – to feed the victims of starvation and drought in East Africa. The words have been changed a little in the 2014 version, recorded to raise money to fight the Ebola Virus Disease in West Africa.

When people with influence give their time and skill to helping others, I think it is ultimately a good thing. However, there will be fewer literal of examples of how the road to hell is paved with good intentions, almost like Stuart Jeffries points out.

BAND AID (1984)

BAND AID 30 (2014)

It’s Christmas time; there’s no need to beafraidAt Christmas time, we let in light and we banish shadeAnd in our world of plenty we can spread a smile of joy

Throw your arms around the world at Christmas time

But say a prayer to pray for the other ones

At Christmas time

It’s hard, but when you’re having fun

There’s a world outside your window

And it’s a world of dread and fear

Where the only water flowing is the bitter sting of tears

And the Christmas bells that ring there

Are the clanging chimes of doom

Well tonight thank God it’s them instead of you

And there won’t be snow in Africa this Christmastime

The greatest gift they’ll get this year is life

Oh, where nothing ever grows, no rain or rivers flow

Do they know it’s Christmas time at all?

Here’s to you, raise a glass for everyone

Here’s to them, underneath that burning sun

Do they know it’s Christmas time at all?

Feed the world

Feed the world

Feed the world

Let them know it’s Christmas time again

Feed the world

Let them know it’s Christmas time again

It’s Christmas time; there’s no need to beafraidAt Christmas time, we let in light and we banish shadeAnd in our world of plenty we can spread a smile of joy

Throw your arms around the world at Christmas time

But say a prayer to pray for the other ones

At Christmas time

It’s hard, but when you’re having fun

There’s a world outside your window

And it’s a world of dread and fear

Where a kiss of love can kill you and there’s death in every tear.

And the Christmas bells that ring there

Are the clanging chimes of doom

Well tonight we’re reaching out and touching you

Bring peace and joy this Christmas to West Africa

A song of hope where there’s no hope tonight

Where to comfort is to fear and to touch is to be scared

How can they know it’s Christmas time at all?

Here’s to you, raise a glass for everyone

And here’s to them, and all their years to come

Let them know it’s Christmas after at all?

Feed the world

Feed the world

Feed the world

Let them know it’s Christmas time again

Feed the world

Let them know it’s Christmas time again

It was at a party on a dark December night’s evening in 2008 that I heard the Band Aid words for the very first time. I had known the song since I was a little boy and would excitedly sing its chorus, but I did not actually hear it until that party. Everyone was singing along, cup in hand and I joined in where I could (which really, to be honest, was the chorus at the end of the song) and as the other words hit me, I could not help squirming through some of the rest of it.

“And there won’t be snow in Africa this Christmas time…” and I was like, duh-uh, it’s too hot to snow in Africa. Then I figured what they meant was that it would not be a frosty, festive Christmas, the sort of which Europe and America had. Well, uhm, okay, no Jack Frost but uhm, no festiveness across all of Africa? All?

“The greatest gift they’ll get this year is life…” Hmmm. Okay, so as a Nigerian seeing the pictures of ‘starving Ethiopian children’ in the 80s, that might make some sense. But, again, the greatest gift? All of Africa? “Clanging chimes of doom”? A tad bit melodramatic, no?

“Where nothing ever grows…”, – now, hold on just one second – “No rain or rivers flow…” In Africa? MY Africa? My country is divided by 2 rivers and we have a world famous delta. The vegetation in the southern part of the country is the Mangrove RAINforest. We still had groundnut pyramids in the 80s. So, just where on earth were Bob Geldof and his friends describing?

The song has been re-recorded this year, to raise funds to support the fight against Ebola, with a little lyrical tweaking. Now, in WEST Africa, all of West Africa, there’s no peace and joy this Christmas and the only hope we’ll have is being alive, because a kiss of love can kill us and there’s death in every tear. Great intentions again, Ebola being serious and deadly, but here’s the “Ebola Map” of Africa at the time of the song’s recording.

What’s the harm in these well-intentioned lyrics, Sir Bob might ask. For one, it reinforces stigmas and stereotypes. The people who sing along to kisses and tears of death in “West Africa” won’t come here as tourists or businessmen. For another, the lyrics are just plain inaccurate. There’s also the question of how useful it is to set metaphors of a harsh Christmas for some against the homogeneity of the Euro-American celebrations. Bitter streams of tears have flown in different parts Africa at different times, but we’re not just a big crying, starving continent. There has been famine and starvation in some parts, but that’s scant justification for describing Africa as a place “where nothing ever grows”.

So let’s re-write the song for Ebola. Put your re-written lyrics as comments or send me an email at rfawole@yahoo.com, and I’ll publish mine and my favourite five (yes, I’m being optimistic about the number of entries I’ll receive but at least there’ll be one new version). And if we can’t make it work for Ebola, then maybe Sir Bob should indeed break the wheel and re-invent another song. Or, if they wanted a truly pan-African cause to change the lyrics to again, they could sing “Do They Know Corruption Kills?”

Better yet, Sir Bob and Friends could help promote this alternative song against Ebola. Every little helps.

Looking at it from Blacc’s perspective, there might be a point about the reward system but I think rather than an indictment on Spotify, it’s more symptomatic of where the industry is, as a whole. Blacc writes –

“Consider the fact that it takes roughly one million spins on Pandora for a songwriter to earn just $90. Avicii’s release “Wake Me Up!” that I co-wrote and sing, for example, was the most streamed song in Spotify history and the 13th most played song on Pandora since its release in 2013, with more than 168 million streams in the US. And yet, that yielded only $12,359 in Pandora domestic royalties— which were then split among three songwriters and our publishers. In return for co-writing a major hit song, I’ve earned less than $4,000 domestically from the largest digital music service.”

If that’s what’s now considered a streaming “success story,” is it any wonder that so many songwriters are now struggling to make ends meet?”

It sounds dire, but that’s 168 million streams versus exactly how much in sales? According to this site, the track sold 237,000 copies when it debuted in July 2013 and only broke the 1,000,000 mark 5 months later in October. Take a look at Billboard’s half year charts for digital singles too. Album sales are down, and have been on the downward trend since 2010. Streaming and subscription revenues, on the other hand, are growing, climbing 51% in 2013 and crossing the $1bn mark (summary here; full report here). The head of Global Trends and Futuring for the Ford Motor Company has also been quoted as saying that “young people prize access over ownership.” So, what’s the issue? Is Spotify, together with the other streaming services simply ripping people off?

The issue may be that content creators don’t fully understand the service yet. Chances are that many users don’t understand the back-end either (they don’t really need to, in all honesty), so if you’re one of them, you might want to check out this post. Another post suggests that Spotify has not sufficiently controlled the narrative and has allowed content creators and the media replace fact with fantasy.

In the latter post (the Lefsetz Letter), the point is made, agreeing with Adele’s manager, that YouTube is by far the bigger monster, paying far less than Spotify does, closely followed by P2P platforms, which pay nothing at all. The post however disagrees with Adele’s manager on some music being taken behind the subscription pay wall, because that would simply push users to YouTube and P2P, leaving the content creators with nothing.

Does this mean anything for streaming in Nigeria? Probably not in the near future. Unreliable mobile internet and expensive data plans mean that very few people without WiFi modems stream much. Furthermore, given that most of our musicians give most of their music away for free downloads, there is little incentive to explore streaming anyway. So, perhaps the Nigerian market prefers ownership to access and this is all moot for now. But I’m an advocate for long-termism, and mobile internet will work someday and voice/data bundles will become more affordable for the streaming demographic. What then?

The current industry model will probably need to change in a year or two. Right now, the model for success is giving music away for free, hoping it becomes a hit that leads to RBT revenue and, ultimately, live performances. This sort of ties in with Dickins’s breakdown of how revenue streams for successful artists today –

“60-65% of their income is going to come from tickets, 15-25% from tour merch, 10-15% from publishing, 2-4% from ancillary and 2-4% from record sales.” (Here’s the link again, just in case; emphasis in the quote mine).

If RBTs are going to be the way forward here, then the crazy percentages that the telcos take of the gross revenue (60-72%, before VAS companies split the net with the artistes/labels) need to come down significantly. The music industry should lobby as hard as they can for legislation to support this (shouldn’t be too hard, with so many entertainers gunning for office in 2015).

If, on the other hand, the African market is to become as competitive as the foreign market, then the industry needs to support its domestic music streaming companies. Streaming kills piracy, and if the numbers are large enough (hint, hint, artistes and label execs), it will put money directly in their pockets. As Lefsetz says, “tech is all about scale” and “people who put brakes on the future end up screwing themselves.”

In conclusion, everyone knows that digital is here and analogue is gone. For Nigerian musicians to fully maximise revenue from digital, given that their largest market is local, they may need to approach the issue a little differently.